This is a petition by Muhammad Zaman under section 497 (5), Cr. P. C. For the cancellation of bail of Sultan Khan and Bostan Khan, sons of Muhammad Khan, Pehlwan Khan son of Punnun Khan and Amanat A.I son of Fazal Dad, respondents Nos. 1 to 4. The said four respondents were admitted to bail by the learned Sessions Judge, Rawalpindi, by his order dated 12-3-1977 and 15-4-1975.
2. This petition was originally admitted on 6-3-1978 on which date it was ordered that notices should issue to all the respondents for 21-3-1978. By 21-3-1978, Sultan Khan, respondent No. 1, who was in jail in connection with another case, was served. Amanat A.I, who was also served. Was absent and, therefore, bailable warrants were ordered to issue against him for 4-4-1978. Bostan Khan and Pehlwan Khan respondents were reported as absconders and their warrants of arrest were also ordered to issue for 4-4-1978. After a number of hearings, Amanat A.I, respondent No. 4, presented himself before the Court on 1-7-1978 and on 16-7-1978, Pehlwan Khan, respondent No. 3, who was arrested in another case, also appeared in Court.
3. On 16-7-1978, I cancelled the bail of Bostan Khan, respondent No. 2. This order was passed as from the report of the learned Assistant Commissioner, Saddar Sub-Division, Rawalpindi, dated 11- 7-1978, it appeared that on 1-7-1978, Sultan Khan, Bostan Khan and Amanat A.I, respondents, were declared proclaimed offenders by him and separate proceedings as required under section 87/88, Cr. P. C. Had been initiated against their sureties. In view of that report, it was clear that Bostan Khan, respondent No. 2, had been absconding and avoiding appearance in this Court and, therefore, his bail was cancelled.
4. During arguments on 16-7-1978, learned counsel for the petitioner himself did not press his case for cancellation of bail of Pehlwan Khan and Amanat A.I, respondents Nos. 3 and 4. In these circumstances, his petition, to the extent that it desired the cancellation of bail of these two respondents, was dismissed.
5. In view of the above, the petition with regard to the cancellation of bail of Sultan Khan, respondent No. 1, alone now remains to be decided.
6. The following submissions have been made by the learned counsel for the petitioner with regard to the cancellation of the bail of Sultan Khan, namely :---
(1) That the incident took place on 1-2-1973 and Sultan Khan and Bostan Khan, respondents Nos. 1 and 2 remained absconding from 1-2-1973 to 18-6-1973 and 1-2-1973 to 18-9-1975 respectively ;
(2) That Sultan Khan, respondent No. 1, during the period of his abscondence, had committed the murder of Sher Zaman, brother of the petitioner, in respect of which F. I. R. No. 10 dated 27-3-1973 at Police Station Kallar Saidan was lodged under section 302/34, P. P. C. ;
(3) That Sultan Khan, respondent, was allowed bail by the learned Sessions Judge, Rawalpindi, only on the ground of delay, without seriously considering the fact that the said respondent was a desperate criminal who had since 1965 been involved in eight criminal cafes, had also absconded in the instant case from 1-2-1973 to 19-6-1973 and during the abscondence period had committed the murder of Sher Zaman, the brother of the petitioner, in respect of which F. I. R. No. 10 dated 27-3- 1973 had been lodged at Police Station, Kallar Saidan.
7. On behalf of Sultan Khan, respondent No. 1, his learned counsel submitted that no proceedings under section 87/88, Cr. P. C. Were taken against Sultan Khan in the instant case during his abscondence period and that in reality, his client had been confined in Ganga Ram Hospital at Lahore during that period. He also submitted that as regards the case under section 302/34, P. P. C.
Lodged at Police Station Kallar Saidan, in respect of the murder of Sher Zaman, brother of the petitioner, his client was acquitted by the Sessions Court on 8-1-1977. It was submitted on the authority of Riyasat A.I v. State (PLD 1977SC480) and Mehdi v. State (Cr. Misc. No. 455/B-77, decided on 1-4-1977) that inordinate delay in the prosecution of the case entitled his client to be admitted to bail.
8. I have given my anxious consideration to the arguments advanced by both the sides.
9. In the first instance, it must be submitted that the occurrence was of an unusual character where a passenger bus, in which persons belonging to the petitioner's group were being taken by the police guard to attend the Court of Assistant Commissioner, Kahuta, when the accused respondents and their colleagues launched a ruthless attack on the bus, in which one passenger was killed and seven others injured. The police guard had also to open fire, which resulted in hand- grenades being thrown by the respondents. In addition to this, as is apparent from two lists filed by the petitioner which show the various cases in which Sultan Khan and Bostan Khan, respondents Nos. 1 and 2, have been involved since 1965 and 1955 respectively, presents a grim picture. Since 1965, Sultan Khan, respondent No. 1, has been involved in eight criminal cases and since 1955, his brother Bostan Khan, respondent No. 2, in twelve criminal cases. These include three cases of murder, to which both Sultan and his brother Bostan have been involved.
10. It is also clear from notings in the police file read out by the learned counsel for the State that Sultan Khan, respondent No. 1, absconded from 1-2-1973 to 18-6-1973 in the present case during which period proceedings under section 87/88, Cr. P. C. Were taken against him.
11. It is also admitted on both sides that both Sultan Khan and Bostan Khan, respondents Nos. 1 and 2, were involved in a case under section 302/34, the murder of Sher Zaman, brother of the petitioner, the said respondents were acquitted, but in respect of which appeal has been admitted for hearing by the High Court and warrants were issued against both the respondents. Sultan Khan, respondent No. 1, is presently in judicial custody in connection with this appeal. He has applied for bail to the Division Bench of the High Court, which petition is still pending. Since he was acquitted by the trial Court, it is the contention of the petitioner's counsel that the probability that he may be enlarged on bail pending the disposal of the appeal filed by the State, cannot be totally excluded.
12. With these facts before me, I now examine the order under challan. It appears when the bail petition of Sultan Khan and Bostan Khan, respondents Nos. 1 and 2, was being argued before the learned Sessions Judge on 12-3-1977, an attempt was made by the Special P. P. To show that both respondents Nos. l and 2 had absconded up to 19-6-1973 and 8-9-1975 respectively, but no special note was taken of this abscondence as regards its impact on the case. What the learned Sessions Judge decided to do was to admit the said two accused persons to bail on the ground of delay simpliciter.
13. Before examining the merits, I will first turn to the rulings cited by both the parties. Riyasat A.I v.
State has been cited for the respondent. In this case, it has been held that a delay of four years in the likely commencement of the trial is unconscionable and inordinate, such as would entitle the accused judicially confined in jail to be enlarged on bail. But this ruling nowhere states that this principle is absolute and admits of no exception and that special circumstances attaching to a case which would entitle a Court to make a departure from this principle, whether to protect innocent parties from being subjected to harassment or in the general public interest, cannot be taken into consideration by the Court in dealing with the question of delay in respect of the grant of bail to accused persons. There were no peculiar circumstances attaching with that case to justify their Lordships from treating delay per se as not a sufficient ground for bail. A judicial principle laid down by a superior Court when interpreting a Statute may admit of little or no inflexibility, but one not interpreting statute in criminal jurisdiction, can never be rigid. Surely, it cannot be said that in particular cases where the accused have absconded during the period of investigation or trial and have allegedly committed an offence o murder during that period, that the case of Riyasat A.I v.
State must B invariably applied to allow them the concession of bail on ground of dely simpliciter, irrespective of all considerations of public policy. In the case' of Barkhurdar v. Liaqat A.I (PLD 1977 SC 434) which has been cited by the petitioner's counsel their Lordships of the Supreme Court have held that delay per se, regardless of its responsibility or other circumstances, does not justify the grant of bail. A long line of authorities of the Supreme Court starting from Riyasat A.I v. Ghulam Muhammad (PLD 1968 SC 353) have weighed and judged delay in each case on its own merits in the light of all surrounding circumstances. This, therefore, shows that each case must be decided on its own facts. In on case, a judge may consider delay per se sufficient and the special circumstances connected with the case before him not justifying any responsibility on him to withhold the relief of bail. Riyasat A.I v. State would be case of this type. In another case, the judge may consider the special circumstances relating to the proceedings sufficient to justify a responsibility on him to withhold the concession of bail. Barkhurdar v. Liaqat A.I falls in ibis category.
Between these two extremes, the Courts would have to appraise each case according to the facts before them and to apply the correct principle, not unmindful of the responsibility that may fall on them in the public interest to protect the legal image of the Court or to prevent harassment of parties, or the abscondence of the accused, etc.
14. In the instant case, Sultan Khan, respondent No. 1, absconded from 1-2-1973 to 19.6-1973 and his brother Bostan Khan also absconded from 1-2-1973 to 8-9-1975. After notices were issued in this case to these two respondents, Sultan Khan was served, because he happened to be in jail in connection with another case, whereas his brother Bostan Khan is still absconding. If Sultan Khan's bail is not cancelled, there is every likelihood that he may, if allowed bail by this High Court in State's Criminal Appeal No. 639 of 1977, abscond and the whole trial, which is fixed for 5-8-1978 before the Sessions Court, may be delayed indefinitely. This cannot be permitted in the interest of justice. In these circumstances, I have no doubt in my mind that the order of the learned Sessions Judge dated 12,3-1977 allowing Sultan Khan, respondent No. 1, and his brother Bostan, bail, was not passed in proper exercise of the judicial discretion vested in him. The learned Sessions Judge could not have dealt with the case of bail on the matter of delay alone without first examining the impact his future absconsion would have on the case, in view of' Sultan Khan and Bostan Khan's past conduct. As already submitted, considerations of public policy and the special circumstances attaching to each particular case must override any question of delay simpliciter which may otherwise entitle an accused to be enlarged on bail. In case where persons accused of murder have, during the course of investigation absconded and committee heinous offence, are admitted to bail on ground of delay simpliciter, desperat criminals would be let loose on society, causing a wave of grave unrest and Tear. The public image of the Courts would at once be shattered. Such a pandora's box cannot be allowed to be opened, regardless o consequences.
15. The learned Sessions Judge has considered the case of bail of respondent No. 1, Sultan Khan, somewhat superficially and not in proper depth. The learned Sessions Judge merely referred in passing to the contention of the learned Special Public Prosecutor as regards the previous abscondence of the respondent in the case, but he did not judicially consider this contention or its impact on the case before him. He also did not judicially consider the fact that the said respondent, during his period of abscondenee, had been involved in a case relating to the murder of the petitioner's brother, and even though lie had been acquitted in that case, his involvement was not barren of all consequences. All these facts should have been seriously taken into consideration by the learned Sessions Judge before admitting Sultan Khan and Bostan Khan to bail. In this case, it was the duty of the learned Judge to first make sure that these matters did not raise the reasonable inference that the said accused, if admitted to bail, would either further abscond and delay the trial, or harass or threaten the witnesses, or commit further crimes. The learned Judge dealt with the question of delay, regardless of circumstances and the special features surrounding the case, which was not a proper exercise of judicial discretion. The learned Sessions Judge did not even advert to the story as given in the F. I. R. Which ex facie showed what type of desperate criminals the respondent Sultan Khan and his brother Bostan Khan were. For all these reasons, I hold that the order of the learned Sessions Judge admitting Sultan Khan, respondent No. 1, to bail was not based on sound judicial principles.
16. For the foregoing reasons, I cancel the bail of Sultan Khan, respondent No. 1 and order him to be arrested and sent to the judicial lock-up. Copy of this order may be sent to the S. H. O. Police Station Rawat, District Rawalpindi.